Citation Nr: 9904993
Decision Date: 02/24/99 Archive Date: 03/03/99
DOCKET NO. 97-14 972 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for diabetes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Orfanoudis, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1948 to July
1952. The veteran also had periods of service in the Air
Force and Army reserves.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 1996 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
REMAND
The veteran is contending that the diabetes mellitus began
while he was in the Reserve. A medical statement from J. B.
Blackburn, M. D., dated in January 1997 is to the effect that
the veteran's diabetes mellitus was discovered in March 1968.
Dr. Blackburn indicated that he had been treating the veteran
since March 1971 and that the veteran had been hospitalized
in September 1973 for transference to insulin. In this
regard, the treatment records concerning the March 1968
discovery of the diabetes mellitus is not on file.
Service connection may be granted for an injury or disease
incurred during active military, naval, or air service. 38
U.S.C.A. §§ 105, 1110, 1131 (West 1991). Service connection
may also be granted for disability resulting from disease or
injury incurred in or aggravated while performing active duty
for training (ACDUTRA) or injury incurred or aggravated by
inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24),
106, 1110, 1131 (West 1991). A review of the record reflects
that the veteran the veteran served in the Air Force Reserve
until 1966 and in the Army reserve from 1967 to February
1980. However, his ACDUTRA and INACDUTRA dates are not on
file.
The record reflects that the RO's prior denial was based in
part on the principle that there must be a reasonable
possibility that the new evidence, when viewed in the context
of all the evidence, both new and old, would change the
outcome. This is the standard for determining new and
material evidence as set forth by the United States Court Of
Veterans Appeals (Court) in Colvin v. Derwinski, 1 Vet. App.
171 (1991).
The United States Court of Appeals for the Federal Circuit
has held that this standard is an incorrect interpretation of
the regulation, 38 C.F.R. § 3.156(a) (1998) and thus cannot
not be used as the basis for the denial. Hodge V. West, No
98-7017 (Fed. Cir. Sept. 16, 1998). 38 C.F.R. § 3.156
provides that new and material evidence means evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim.
In a May 1997 rating action, the RO determined that new and
material evidence had not been submitted to reopen a claim
for service connection for varicose veins. The Board
considers the September 1997 statement from the
representative as being a timely notice of disagreement
regarding this denial and, as such, a statement of the case
is required.
In order to ensure that the VA has met its duty to assist the
veteran in developing the facts pertinent to his appeal and
to ensure the veteran's right of due process, the case is
REMANDED to the RO for the following development:
1. The RO should furnish the appropriate
release of information forms in order to
obtain copies of VA and private medical
records, which are not on record with
regard to treatment for his diabetes, to
include the medical records regarding the
March 1968 diagnosis of diabetes
mellitus, copies of the actual treatment
records from Dr. Blackburn, and the
hospital report concerning the veteran's
treatment in September 1973 at Brevard
Hospital. The RO should then obtain all
records, which are not on file.
The RO should inform the veteran that he
has the opportunity to submit any
additional evidence and arguments in
support of his claim.
2. The RO should then contact the
appropriate authority to obtain the
veteran's periods of ACDUTRA and
INACDUTRA during his service in the Air
Force and Army Reserve.
3. Following any additional development
deemed appropriate by the RO, the RO
should readjudicate the issue in
appellate status, to include
consideration of the holding in Hodge V.
West, No 98-7017 (Fed. Cir. Sept. 16,
1998).
4. The RO should furnish the veteran and
his representative a statement of the
case regarding whether new and material
evidence has been submitted to reopen a
claim for service connection for diabetes
mellitus and an opportunity to respond.
The appellant should be informed of the
requirements necessary to perfect his
appeal. The Board points out that this
issue is not before the Board until a
timely substantive appeal is received.
If the benefit sought is not granted, a Supplemental
Statement of the Case should be issued to the veteran and his
representative and they should be provided an opportunity to
respond. The claims folder should then be returned to the
Board for further review, as appropriate.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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